RAYMOND GRAVES, LORI MELTON, CHERYL LANDPHIER, PATRICIA ALLEN, MARGARET GRAVES, NANCY JOHNSON, KAY GAGE, SUE NELSON, CARYL J. HELLER, JON J. HELLER, GINI HELLER, DEANA HELLER, GEORGIA HELLER, JAY HELLER, GEORGE HELLER, JR., ALLEN HELLER, INDIVIDUALLY, ROBERT C. STONE, PERSONAL REPRESENTATIVE OF THE ESTATE OF GEORGE HELLER, SR., AND ROBERT C. STONE, TRUSTEE OF THE REVOCABLE TRUST OF GEORGE H. HELLER, SR., PETITIONERS,
v.
CHRISTINA M. LAPI AND MICHELLE T. LAPI, JOINTLY AND SEVERALLY, RESPONDENTS
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Petitioners sought certiorari review of an order disqualifying their attorney from representing them in litigation over a decedent's estate. The Fourth District Court of Appeal partially granted the petition, holding that while the attorney could not serve as advocate at trial due to being a likely material witness, the disqualification was too broad and should have been limited to trial proceedings only.
The court held that the attorney could be disqualified from acting as advocate at trial under Rule 4-3.7(a), as this rule precludes a lawyer from acting as advocate at trial when the lawyer likely will be a necessary witness. However, the disqualification order was too broad because it did not limit the disqualification to trial advocacy, and the attorney should be permitted to represent the parties in pre-trial and post-trial proceedings.
[1] A lawyer may be disqualified from acting as an advocate at trial if the lawyer is likely to be a necessary witness on behalf of the client.
[2] Disqualification of counsel as a necessary witness is generally limited to trial advocacy and does not preclude participation in pre-trial proceedings.
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Join FLexlaw to unlock all legal intelligence“precluding lawyer from acting as advocate at a trial where the lawyer likely will be necessary witness on behalf of the client”
Establishes the rule that an attorney cannot serve as advocate at trial when likely to be a material witness
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Join FLexlaw to unlock all legal intelligenceThe attorney serves as both personal representative of the estate of George H. Heller, Sr. and trustee of his revocable trust. The beneficiaries of th…
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PER CURIAM.
Petitioners seek certiorari review of an order disqualifying an attorney and his law firm from representing them upon the motion filed by respondent Michelle T. Lapi, one of the defendants below. This petition arises from litigation concerning the estate of the decedent, George H. Heller, Sr. The attorney serves as both personal representative of the estate and trustee of his trust. The beneficiaries of the trust are plaintiffs in an action to recover assets they claim were obtained from the decedent by two women through undue influence. The order granting one defendant’s motion to disqualify the attorney from representing the plaintiffs is based on the defendant’s unrefuted allegations1 that the attorney is likely to be a material witness at the trial. We grant the petition in part and deny it in part.
To the extent the order disqualifies counsel from acting as the plaintiffs’ advocate at trial, we deny the petition, concluding that petitioners have not established any departure from the essential requirements of law. See R. Regulating Fla. Bar 4-3.7(a) (precluding lawyer from acting as advocate at a trial where the lawyer likely will be necessary witness on behalf of the client); Larkin v. Pirthauer, 700 So. 2d 182 (Fla. 4th DCA 1997).
However, we conclude that the order was too broad in not limiting the disqualification to trial advocacy, an issue which petitioners clearly raised below in their reply to the motion. See Columbo v. Puig, 745 So. 2d 1106, 1107 (Fla. 3d DCA 1999) (interpreting rule’s key words “at trial” to mean that counsel should be permitted to represent party “in any proceedings before trial and after trial”); Cerillo v. Highley, 797 So. 2d 1288 (Fla. 4th DCA 2001) (specifically quashing order disqualifying counsel from participating in pre-trial proceedings); Fleitman v. McPherson, 691 So. 2d 37 (Fla. 1st DCA 1997).
Granted in part and denied in part.
SHAHOOD and TAYLOR, JJ., concur. KLEIN, J., dissents with opinion.
. Petitioners, who did not furnish a transcript of the hearing on the motion, complain that there has been no evidentiary hearing. However, they do not claim to have requested one nor refute Michelle Lapi's representations that it was Petitioners who set her motion to be heard on the court’s motion calender, that she proffered her testimony would be the same as the allegations of her motion, and that Petitioners did not offer contradictory evidence on any material issue.
KLEIN, J.,
dissenting.
I would grant the petition in all respects because, in my opinion, it is premature to disqualify counsel from representing plaintiffs at trial, especially where there has been no evidentiary hearing. Once the facts are developed through discovery, the trial court would then be in a position to make a more informed decision as to whether counsel should be disqualified from representing respondents at trial.
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KMS Rest. Corp v. Searcy, 107 So. 3d 552 (Fla. 4th DCA 2013)…d KMS’s counsel solely because he is a material witness in the underlying case. The trial court’s order departs from the essential requirements of law because it is not limited to disqualifying counsel from representing KMS at trial. Graves v. Lapi, 834 So. 2d 359 (Fla. 4th DCA 2003); Cerillo v. Highley, 797 So. 2d 1288 (Fla. 4th DCA 2001). The fact that counsel will be a material witness does not preclude him from participating in proceedings before and after trial. Accordingly we grant this petition and q…
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Lieberman v. Lieberman, 160 So. 3d 73 (Fla. 4th DCA 2014)…prevent her from serving as the former husband’s attorney in other pre-trial, trial, and post-trial proceedings. See KMS Rest. Corp. v. Searcy, Denney, Scarola, Barnhart & Shipley P.A., 107 So. 3d 562, 552 (Fla. 4th DCA 2013) (citing Graves v. Lapi, 834 So. 2d 359, 360 (Fla. 4th DCA 2003), and Cerillo v. Highley, 797 So. 2d 1288, 1289 (Fla. 4th DCA 2001)). Under normal circumstances, we would conclude this opinion by simply granting the petition and quashing the trial court’s order of disqualification and th…
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Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fleitman v. Virginia McPHERSON (individually and as President, 691 So. 2d 37 (Fla. 1st DCA 1997)
- Ugo Columbo v. Puig, 745 So. 2d 1106 (Fla. 3d DCA 1999)
- Cerillo v. Highley, 797 So. 2d 1288 (Fla. 4th DCA 2001)
- Larkin v. Pirthauer, 700 So. 2d 182 (Fla. 4th DCA 1997)